United States District Court, D. New Mexico
December 16, 2016
JESUS MORENO, Plaintiff,
GEO GROUP, CORIZON, INC. and DR. WALDEN, Defendants.
MEMORANDUM OPINION AND ORDER
MATTER is before the Court sua sponte under
Fed.R.Civ.P. 12(b)(6) and 28 U.S.C. § 1915(e)(2)(B) on
the Tort Civil Suit filed by Plaintiff Jesus Moreno. (Doc.
1-1) (“Complaint”). The Court will dismiss the
claims against Defendants GEO Group and Corizon, Inc. under
Fed.R.Civ.P. 12(b)(6) and will order the issuance of notice
and waiver of service forms directed to Defendant Dr. Walden.
Jesus Moreno filed his Complaint in the First Judicial
District, County of Santa Fe, State of New Mexico on
September 3, 2015. (Doc. 1-1). Although titled “Tort
Civil Suit, ” Moreno alleges violation of his Fourth,
Eighth, and Fourteenth Amendment rights under the United
States Constitution. (Doc. 1-1 at 2-4). Moreno seeks
compensatory damages and declaratory relief. (Doc. 1-1 at 4).
The case was timely removed to this Court by Defendant,
Corizon, Inc., on January 7, 2016 based on federal question
jurisdiction under 28 U.S.C. § 1331. (Doc. 1 at 3,
is a prisoner proceeding pro se and in forma
pauperis. (Doc. 1-1). Moreno alleges that he was sexually
abused by Defendant Walden while incarcerated at the
Northeastern New Mexico Detention Facility in Clayton, New
Mexico. (Doc. 1-1 at2-3). Moreno names as Defendants the GEO
Group, a private prison contractor, Corizon, Inc., a prison
medical service provider, and Dr. Walden. (Doc. 1-1 at 2).
Moreno claims the sexual abuse by Dr. Walden constitutes
deliberate indifference to serious medical harm in violation
of Eighth and Fourteenth Amendment rights and invasion of
privacy in violation of the Fourth Amendment. (Doc. 1-1 at
Moreno is proceeding pro se and in forma pauperis.
The Court has the discretion to dismiss an in forma
pauperis complaint sua sponte for failure to
state a claim upon which relief may be granted under either
Fed.R.Civ.P. 12(b)(6) or 28 U.S.C. § 1915(e)(2)(B). A
claim should be dismissed where it is legally or factually
insufficient to state a plausible claim for relief. Bell
Atlantic Corp. v. Twombly, 550 U.S. 544 (2007).
Fed.R.Civ.P. 12(b)(6) the Court must accept all well-pled
factual allegations, but not conclusory, unsupported
allegations, and may not consider matters outside the
pleading. Twombly, 550 U.S. at 555; Dunn v.
White, 880 F.2d 1188, 1190 (10th Cir. 1989).
The court may dismiss a complaint under rule 12(b)(6) for
failure to state a claim if “it is ‘patently
obvious' that the plaintiff could not prevail on the
facts alleged.” Hall v. Bellmon, 935 F.2d
1106, 1109 (10th Cir. 1991) (quoting McKinney v. Oklahoma
Dep't of Human Services, 925 F.2d 363, 365 (10th
Cir. 1991)). A plaintiff must allege “enough facts to
state a claim to relief that is plausible on its face.”
Twombly, 550 U.S. at 570.
§ 1915(e)(2)(B) the court may dismiss the complaint at
any time if the court determines the action fails to state a
claim upon which relief may be granted. §
1915(e)(2)(B)(2) The authority granted by § 1915 permits
the court the unusual power to pierce the veil of the
complaint's factual allegations and dismiss those claims
whose factual contentions are clearly baseless. Neitzke
v. Williams, 490 U.S. 319, 327 (1989). See also Hall
v. Bellmon, 935 F.2d 1106, 1109 (10th Cir.1991). The
authority to “pierce the veil of the complaint's
factual allegations” means that a court is not bound,
as it usually is when making a determination based solely on
the pleadings, to accept without question the truth of the
plaintiff's allegations. Denton v. Hernandez,
504 U.S. 25, 32-33 (1992). The court is not required to
accept the truth of the plaintiff's allegations but,
instead, may go beyond the pleadings and consider any other
materials filed by the parties, as well as court proceedings
subject to judicial notice. Denton, 504 U.S. at
reviewing a pro se complaint, the Court liberally construes
the factual allegations. See Northington v. Jackson,
973 F.2d 1518, 1520-21 (10th Cir. 1992). However, a pro se
plaintiff's pleadings are judged by the same legal
standards that apply to all litigants and a pro se plaintiff
must abide by the applicable rules of court. Ogden v. San
Juan County, 32 F.3d 452, 455 (10thCir.
1994). The court is not obligated to craft legal theories for
the plaintiff or to supply factual allegations to support the
plaintiff's claims. Nor may the court assume the role of
advocate for the pro se litigant. Hall v. Bellmon,
935 F.2d at 1110.
deciding whether to dismiss the complaint, in whole or in
part, the court is to consider whether to allow plaintiff an
opportunity to amend the complaint. Pro se plaintiffs should
be given a reasonable opportunity to remedy defects in their
pleadings. Reynoldson v. Shillinger, 907 F.2d 124,
126 (10th Cir. 1990). The opportunity to amend
should be granted unless amendment would be futile. Hall
v. Bellmon, 935 F.2d at 1109. An amendment is futile if
the amended claims would also be subject to immediate
dismissal under the rule 12(b)(6) or § 1915(e)(2)(B)
standards. Bradley v. Val-Mejias, 379 F.3d 892, 901
(10th Cir. 2004).
Complaint does not expressly allege causes of action under 42
U.S.C. § 1983 and, instead, asserts violation of various
federal constitutional rights. However, 42 U.S.C. § 1983
is the exclusive vehicle for vindication of substantive
rights under the Constitution. See, Baker v.
McCollan, 443 U.S. 137, 144 n. 3 (1979); Albright v.
Oliver, 510 U.S. 266, 271 (1994) (Section 1983 creates
no substantive rights; rather it is the means through which a
plaintiff may seek redress for deprivations of rights
established in the Constitution). Therefore, the Court
construes Moreno's claims for violation of rights under
the Constitution as civil rights claims brought under 42
U.S.C. § 1983.
state a claim for relief under 42 U.S.C. § 1983, a
plaintiff must assert acts by government officials acting
under color of law that result in a deprivation of rights
secured by the United States Constitution. 42 U.S.C. §
1983; West v. Atkins, 487 U.S. 42, 48 (1988). There
must be a connection between official conduct and violation
of a constitutional right. Conduct that is not connected to a
constitutional violation is not actionable under Section
1983. See Trask v. Franco, 446 F.3d 1036, 1046
(10th Cir. 1998).
a civil rights action against a public official or entity may
not be based solely on a theory of respondeat superior
liability for the actions of employees or subordinates. A
plaintiff must plead that each government official, through
the official's own individual actions, has violated the
Constitution. Ashcroft v. Iqbal, 556 U.S. 662, 676
(2009). Plaintiff must allege some personal involvement by an
identified official in the alleged constitutional violation
to succeed under § 1983. Fogarty v. Gallegos,
523 F.3d 1147, 1162 (10th Cir. 2008). In a Section
1983 action, it is particularly important that a
plaintiff's complaint “make clear exactly
who is alleged to have done what to whom,
to provide each individual with fair notice as to the basis
of the claim against him or her.” Robbins v.
Oklahoma, 519 F.3d 1242, 1249-50 (10th Cir.
2008) (emphasis in the original).
Complaint names the GEO Group and Corizon, Inc., but does not
make any factual allegations against either entity.
(See Doc. 1 at 1, 4, 7). The Complaint does not
identify who did what to whom and is wholly insufficient to
state a claim upon which relief can be granted against GEO
Group and Corizon. Ashcroft v. Iqbal, 556 U.S. at
676; Robbins v. Oklahoma, 519 F.3d at 1249-50.
Although Moreno makes generalized statements that Defendants
have been deliberately indifferent to his medical needs and
created a known risk but does not allege any specific
wrongful conduct by either the GEO Group or Corizon or
explain how that conduct violates his constitutional rights.
Moreno does allege that Dr. Walden sexually abused him, but
does not allege any employee or agency relationship between
Dr. Walden and either GEO Group or Corizon. Generalized
allegations against entity defendants, without identification
of actors and conduct that caused the deprivation of a
constitutional right, fails to state any claim for relief.
Robbins v. Oklahoma, 519 F.3d at 1249-50.
Moreno's formulaic recitations of Eighth and Fourteenth
Amendment violations are not sufficient to state a plausible
claim against the GEO Group or Corizon, Inc.
Twombly, 550 U.S. at 570.
Moreno's allegations fail to state any legally sufficient
claim for relief against the GEO Group or Corizon, Inc.,
under either Fed.R.Civ.P. 12(b)(6) or 28 U.S.C. §
1915(e)(2)(B). The Court will dismiss Moreno's claims
against those Defendants. The Court will also grant Moreno
leave to file an amended complaint consistent with this
Memorandum Opinion within thirty (30) days of entry of the
Memorandum Opinion and Order. Hall v. Bellmon, 935
F.2d at 1109. If Moreno fails to file an amended complaint
within thirty days or files an amended complaint that
similarly fails to state a factually and legally sufficient
cause of action, the Court may dismiss the claims against the
GEO Group and Corizon, Inc., with prejudice and without
further notice. The Court determines that the Complaint does
make a threshold showing sufficient to state a plausible
claim for relief against Defendant Walden and will order the
issuance of notice and waiver of service forms for Dr.
ORDERED that the claims against Defendants GEO Group and
Corizon, Inc. in the Tort Civil Suit filed by Plaintiff Jesus
Moreno. (Doc. 1-1) are DISMISSED for failure to state a claim
on which relief can be granted and Plaintiff is GRANTED
thirty (30) days from entry of this Memorandum Opinion and
Order to file an amended complaint.
ALSO ORDERED that the CLERK is DIRECTED TO issue notice and
waiver of service forms, with copies of the Tort Civil Suit
(Doc. 1-1) for Defendant Dr. Walden.
 Moreno was granted free process by the
First Judicial District Court prior to removal and is deemed
to be proceeding in forma pauperis under 28 U.S.C.
§ 1915 in this Court. See Doc. 1-1 at 15;
Bartelli v. Beard, 2008 WL 4363645 at *5 (M.D Pa.